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Ricky Velez, an infant, by his mother and natural guardian, Noemi Velez, and Noemi Velez, individually v. City of New York and New York City Housing Authority and The City of New York v. Ridgewood Bushwick Senior Citizens Counsel, Inc.

Supreme Court, Kings County, Index No. 18792/91

This action was commenced by then-infant plaintiff, Ricky Valez, and his mother, Noemi Valez, to recover for injuries allegedly caused by his fall from their apartment window. The apartment building was owned by defendant/third-party plaintiff City of New York, and managed by third-party defendant Ridgewood Bushwick Senior Citizens Counsel, Inc., represented by Malapero & Prisco. As a basis for the case, Plaintiff alleged that the City was negligent in failing to properly construct and maintain the window and specifically, for failing to have window guards installed. In a Third-Party Complaint, the City impleaded Bushwick based on an alleged contractual relationship that would have transferred risk to Bushwick.

Malapero & Prisco and the City made motions for summary judgment and oral arguments were heard by the Court from all parties. Malapero & Prisco argued that neither Bushwick nor the City was obligated to install and/or to maintain a window guard upon a window that permits access to a fire escape, a detail that came to light in the depositions. Additionally, since Bushwick did not have a duty, under common law or contract, to install and to maintain such a window guard, it was not negligent in any manner. Malapero & Prisco further argued that, although the City sought contractual indemnification from Bushwick, the City must also establish that it was without fault. In turn, the City’s counsel echoed Bushwick’s arguments with regard to its lack of obligation to install a window guard and also requested that the Court grant it summary judgment and dismiss Plaintiffs’ action.

Plaintiffs’ counsel argued Defendant’s responsibility, asserting that a window guard had been installed prior to the infant plaintiff’s fall and that the lock on the window had been broken for a long time prior to the incident. Despite Plaintiffs’ counsel’s protests, the Court granted both Defendant’s and Third-party Defendant’s motions, citing both the case law and statutory law that Malapero & Prisco included in its Memorandum of Law in support of its motion.